Citation Nr: 21076748 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-50 852 DATE: December 27, 2021 ORDER An initial 10 percent rating, but no higher, for left foot plantar warts is granted, effective July 7, 2015, subject to the laws and regulations governing payment of monetary benefits. FINDING OF FACT During the period on appeal, the Veteran's left foot plantar warts have manifested with pain. CONCLUSION OF LAW The criteria for an initial 10 percent rating, but no higher, for left foot plantar warts have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.118, Diagnostic Codes (DCs) 7804, 7899-7820. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from November 1990 to September 1994. The matter is on appeal before the Board from am October 2015 rating decision. The Board previously remanded the issue for further development in February 2020. The development is completed, and the issue has returned to the Board for further adjudication. Initial Rating Left Foot Plantar Warts Procedurally, in an October 2015 rating decision, the Veteran was granted service connection for left foot plantar warts with a noncompensable evaluation effective July 7, 2015, the date the Veteran filed his claim with VA. In January 2016, the Veteran submitted a claim requesting an increased rating for his left foot plantar warts. The Veteran was denied a compensable rating for his left foot plantar warts in an April 2016 rating decision. In July 2016, the Veteran filed a Notice of Disagreement (NOD), in which he disagreed with the noncompensable evaluation provided for his service-connected left foot plantar warts. Following the issuance of a Statement of the Case (SOC) in August 2017, the Veteran submitted a Form 9 Appeal to the Board in September 2017. In December 2020, the Board remanded the issue for further development. The Board noted in the December 2020 remand, that by applying a liberal Veteran friendly approach, the July 2016 NOD would be construed as applying to the October 2015 rating decision. A Supplemental Statement of the Case (SSOC) was rendered in December 2020. Applicable Law The Veteran's left foot plantar warts are rated under DC 7899-7820, which pertains to infections of the skin not listed elsewhere (including bacterial, fungal, viral, treponemal, and parasitic diseases). VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the Agency of Original Jurisdiction (AOJ) on or after August 13, 2018. Claims, as in here, pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to August 13, 2018, DC 7820 provides that infections of the skin not listed elsewhere in the rating schedule are to be rated as disfigurement of the head, face, or neck (DC 7800), scars (DC 7801-7805), or dermatitis (DC 7806), depending upon the predominant disability. 38 C.F.R. § 4.118, DC 7820. As the Veteran's plantar wart condition is a condition of his left foot, and is therefore not a disfigurement of the head, face, or neck, DC 7800 is not applicable and shall not be further discussed. As previously noted, under the regulations in effect prior to August 13, 2018, scars that do not impact the head, face, or neck are rated under DCs 7801-7805, and dermatitis is rated under DC 7806. Prior to August 13, 2018, under DC 7801, a 10 percent rating is assigned when a scar, not of the head, face, or neck, is deep and nonlinear, and covers an area of at least 6 square inches (39 sq. cm.), but less than 12 square inches (77 sq. cm.). A 20 percent rating is assigned for a deep and nonlinear scar not of the head, face, or neck, with an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.). A 30 percent rating is assigned for a deep and nonlinear scar not of the head, face, or neck, with an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.). A 40 percent rating is assigned for a deep and nonlinear scar not of the head, face, or neck, with an area or areas of 144 square inches (465 sq. cm.) or greater. A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801. Prior to August 13, 2018, under DC 7802, a 10 percent rating is assigned when a scar, not of the head, face, or neck, is superficial and nonlinear, and covers an area of at least 144 square inches (929 sq. cm.). A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7802. Prior to August 13, 2018, under DC 7804, a 10 percent rating is assigned for one or two scars that are unstable or painful. A 20 percent rating is assigned for three or four scars that are unstable of painful. A 30 percent rating is assigned for five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. If one or more scars are both unstable and painful, 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. Finally, scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7804, when applicable. 38 C.F.R. § § 4.118, DC 7804. Prior to August 13, 2018, under DC 7805, any disabling effect(s) not considered in a rating provided under DCs 7800-7804 should be evaluated under an appropriate diagnostic code. 38 C.F.R. § § 4.118, DC 7805. Prior to August 13, 2018, under DC 7806 for dermatitis, a noncompensable rating is assigned for less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12 months. A 10 percent rating is assigned for at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is assigned for 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly during the past 12-month period. A 60 percent rating is assigned for more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near- constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12- month period. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. "Corticosteroids or other immunosuppressive drugs" refers to any oral or parenteral medication(s) prescribed by a medical professional to treat the underlying skin disorder. For claims filed prior to August 13, 2018, the Court held that compensation is available for all systemic therapies that are "like or similar to corticosteroids or other immunosuppressive drugs." Warren v. McDonald, 28 Vet. App. 194, 197-99 (2016). A topical corticosteroid could be administered on a large enough scale to affect the body as a whole, thus meeting the definition of "systemic therapy." Johnson v. Shulkin, 862 F.3d 1351, 1354-56 (Fed. Cir. 2017). A systemic therapy is one that that affects the entire body in its treatment of the condition at issue, and that the Board must determine (1) whether a topical treatment affects the body as a whole in treating a Veteran's skin condition; and (2) whether the given treatment is "like" a corticosteroid or other immunosuppressive drug. Burton v. Wilkie, 30 Vet. App. 286 (2018). Only the second question need be addressed if the treatment is clearly systemic. Id. Under the regulations effective August 13, 2018, a new General Rating Formula for the Skin applies to DC 7820, as well as DC 7806. Under this formula, a noncompensable rating is assigned for no more than topical therapy required over the past 12-month period and at least one of the following: characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating is assigned for at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. A 30 percent rating is assigned for at least one of the following: characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is assigned for at least one of the following: characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801-7805), depending on the predominant disability. 38 C.F.R. § 4.118, DCs 7806, 7820. Additionally, effective August 31, 2018, VA regulations explicitly state that systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118(a). As the Veteran's plantar wart condition is a condition of his left foot, and is therefore not a disfigurement of the head, face, or neck, DC 7800 is still not applicable under the regulations effective August 13, 2018 and shall not be further discussed. As previously noted, under the regulations effective August 13, 2018, scars are still rated under DCs 7801-7805. Effective August 13, 2018, DC 7801 provides ratings for scars, other than the head, face, or neck, that are associated with underlying soft tissue damage. A 10 percent rating is assigned for a scar not of the head, face, or neck, that is associated with underlying soft tissue damage with an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.). A 20 percent rating is assigned for a scar not of the head, face, or neck, that is associated with underlying soft tissue damage with an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.). A 30 percent rating is assigned for a scar not of the head, face, or neck, that is associated with underlying soft tissue damage with an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.). A 40 percent rating is assigned for a scar not of the head, face, or neck, that is associated with underlying soft tissue damage with an area or areas of 144 square inches (465 sq. cm.) or greater. 38 C.F.R. § 4.118, DC 7801. Effective August 13, 2018, DC 7802 provides ratings for scars, other than the head, face, or neck, that are not associated with underlying soft tissue damage. A 10 percent rating is assigned for a scar not of the head, face, or neck, that is not associated with underlying soft tissue damage. A 10 percent rating is assigned for such a scar with an area or areas of 144 square inches (929 sq. cm.) or greater. 38 C.F.R. § 4.118, DC 7802. Effective August 13, 2018, DC 7804 provides ratings for scars that are unstable or painful. A 10 percent rating is assigned for one or two scars that are unstable or painful. A 20 percent rating is assigned for three or four scars that are unstable or painful. A 30 percent rating is assigned for five or more scars that are unstable or painful. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804, when applicable. 38 C.F.R. § 4.118, DC 7804. Effective August 13, 2018, under DC 7805, any disabling effects of other scars (including linear scars) and other effects of scars evaluated under DCs 7800, 7801, 7802, and 7804, that are not considered in a rating provided under diagnostic codes 7800-7804 are to be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118, DC 7805. Analysis Over the course of the appeal, the Veteran has undergone three VA examinations in relation to his left foot plantar warts. The Veteran first underwent a VA examination in September 2015, at which he reported that he began having problems with plantar warts around 1992. The warts were noted to cause the Veteran pain when he walks for a prolonged period of time. The Veteran reported that he gets frequent plantar warts, which continue to come back after repeated excisions. The examiner indicated that the Veteran had neither been treated with any medications in the past 12 months for the warts, nor undergone any other types of treatments or procedures for the warts. Upon physical examination, the examiner described the Veteran's plantar wart as one small lesion to the base of the forefoot characterized by hard grainy growth that is consistent with a plantar wart. The examiner indicated that the plantar wart covered less than five percent of total body area and no exposed area. The Veteran was not found to have any benign or malignant neoplasms or metastases related to the plantar warts. The Veteran's plantar warts did not cause any scarring (regardless of location), or disfigurement of the head, face, or neck. The examiner indicated that the Veteran's plantar warts functionally impacted the Veteran because it affects his ability to do prolonged weight-bearing, standing, and walking. The Veteran next underwent a VA examination in March 2016, at which he reported having his plantar warts treated about every two to four months. The treatment is usually carving the wart out and putting medication on it. The Veteran reported utilizing salicylate pads daily to help keep the callous formation down. The wart is painful to touch and walk on when it is bigger. The examiner indicated that the Veteran had been treated with salicylic acid plaster, a topical medication, within the past 12 months for a duration of six weeks or more, but not constant. The Veteran had not undergone any other types of treatment or procedures for the warts in the prior 12 months. Upon physical examination, the examiner described the Veteran's plantar wart as less than one centimeter in diameter on the bottom of the left foot over the third metatarsal head. It was tender to palpation and slightly elevated above the surrounding skin level. The examiner indicated that the plantar wart covered less than five percent of total body area and no exposed area. The Veteran was not found to have any benign or malignant neoplasms or metastases related to the plantar warts. The Veteran's plantar warts did not cause any scarring (regardless of location), or disfigurement of the head, face, or neck. The examiner indicated that the Veteran's plantar warts functionally impacted the Veteran due to pain with walking and weightbearing, in turn limiting time on his feet. At the most recent VA examination in November 2020, the Veteran reported that he has had plantar warts since 1992. He has had the warts cut out several times, most recently in May 2020. He explained that he has pain when walking and standing, and that if he walks on uneven surfaces or a rock pushes up on the wart, the pain can be severe. The examiner indicated that the Veteran had not been treated with any medications in the past 12 months for the warts. The only treatment the examiner noted was the surgical removal of the wart in May 2020. Upon physical examination, the examiner described the Veteran's plantar wart as a hard hyperpigmented area on the ball of the left foot and indicated that it covered less than five percent of total body area and no exposed area. The Veteran was not found to have any benign or malignant neoplasms or metastases related to the plantar warts. The Veteran's plantar warts did not cause any scarring (regardless of location), or disfigurement of the head, face, or neck. The examiner indicated that the Veteran's plantar warts functionally impact the Veteran by limiting his ability to carry heavy objects greater than 50 pounds, stand or walk for prolonged periods of time, and run for a distance less than one mile. A review of the Veteran's VA treatment records does not reflect any findings of any greater significance than those in the above VA examinations. In general, the Veteran's VA treatment records show a history of recurrent plantar warts on the bottom of his left foot, that have been treated with salicylic acid plaster, a topical treatment. The Veteran has not been treated with any systemic therapies at any time during the appeal period. The Veteran's treatment records also reflect that the Veteran has pain due to his warts, which has affected his level of activity. He has tried cutting the warts out, utilizing custom inserts with metatarsal padding, callous pads, moleskin, debridements, and non-systemic topical treatments. Based upon the foregoing, the Veteran's disability picture at first reflects a noncompensable evaluation under the possible applicable DCs. At no time during the appeal period have the Veteran's plantar warts been found to affect five percent or more ot his entire body or any exposed areas. Over the course of the appeal, treatment of his warts has consisted of having the warts removed, and utilizing topical treatments such as salicylic acid plaster, neither of which constitute systemic therapies within the meaning of VA regulations. In addition, the Veteran's warts have not caused any scarring (regardless of location), or any disfigurement of the head, face, or neck. However, the Veteran's record does reflect that his left foot plantar warts are productive of pain. In each of the VA examinations, the examiner's indicated that the Veteran's plantar warts functionally impacted him due to pain limiting his abilities with standing, walking, running, and weight bearing. Under DC 7804, one or two scars which are unstable or painful warrant a 10 percent rating. As previously stated, the Veteran's plantar warts have not caused scarring, and are not scars themselves, however, the warts do manifest with pain. As such, by granting the Veteran the benefit of the doubt, the Board finds that the Veteran's painful plantar warts warrant a 10 percent evaluation, but no higher, for the entirety of the appeal period under DC 7804. By a liberal interpretation, the Veteran's plantar warts that are productive of pain, are analogous to a painful scar. However, as the Veteran's plantar warts are not actually a scar, and have not caused any scarring, a rating in excess of 10 percent is not warranted. Additionally, while the Veteran's left foot plantar warts have functionally impacted him due to pain, his pain has only minimally interfered with his functioning. The Board has also considered whether a rating under DCs 7801, 7802, or 7805 is appropriate in this case, as those DCs also apply to scars. However, given the location, size, and nature of the Veteran's plantar warts, these DCs are not applicable. Accordingly, an initial rating of 10 percent, but no higher, for the Veteran's service-connected left foot plantar warts is granted, effective July 7, 2015. TIFFANY HANSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Lutgens-Staley, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.